Opinion
2008-1494 QC.
Decided on October 23, 2009.
Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purification, J.), entered June 2, 2008, deemed from a judgment of the same court entered July 21, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 2, 2008 order granting defendants' motion for summary judgment dismissing the complaint as to plaintiff Blanca Saavedra, dismissed the complaint as to said plaintiff.
ORDERED that the judgment, insofar as appealed from by plaintiff Blanca Saavedra, is affirmed without costs; and it is further,
ORDERED that the appeal by plaintiff Guillermo Hernandez is dismissed.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ.
In September 2006, plaintiffs commenced this action in the Supreme Court to recover damages for injuries sustained in a motor vehicle accident. Defendants interposed an answer and, inter alia, demanded a bill of particulars. Plaintiff Blanca Saavedra served a bill of particulars on defendant in 2006, which failed to mention Saavedra's injuries. By order dated August 28, 2007, Saavedra was directed to, inter alia, serve a supplemental bill of particulars "by 9/28/07 . . . or plaintiff shall be precluded from offering evidence at the trial of this matter as to all matters addressed by the demand." The case was subsequently transferred to the Civil Court pursuant to CPLR 325 (d). In February 2008, defendants moved for summary judgment dismissing the complaint as to Saavedra on the ground that she had failed to comply with the August 28, 2007 order. The Civil Court granted defendants' motion, and the instant appeal by plaintiffs ensued. Subsequently, a judgment was entered, from which the appeal is deemed taken (CPLR 5501 [c]).
As a result of plaintiff Saavedra's failure to serve a supplemental bill of particulars by the date set forth in the conditional order of preclusion, that order became absolute ( see G.D. Van Wagenen Fin. Servs., Inc. v Sichel, 43 AD3d 1104; Jenkinson v Naccarato, 286 AD2d 420; Michaud v City of New York, 242 AD2d 369). In order to avoid the adverse impact of the order of preclusion, Saavedra had to demonstrate a reasonable excuse for her failure to comply therewith and a meritorious cause of action ( see Jenkinson v Naccarato, 286 AD2d at 421; Michaud v City of New York, 242 AD2d at 370), which she failed to do. Since the order of preclusion prevented Saavedra from establishing a prima facie case as to her cause of action, the Civil Court properly dismissed the complaint as to said plaintiff ( Michaud v City of New York, 242 AD2d 369).
Accordingly, the judgment, insofar as appealed from by plaintiff Blanca Saavedra, is affirmed. The appeal by plaintiff Guillermo Hernandez is dismissed on the ground that he is not aggrieved by the judgment dismissing the complaint as to his co-plaintiff (CPLR 5511).
Pesce, P.J., Weston and Rios, JJ., concur.